{ "id": 6137700, "name": "David McELYEA v. STATE of Arkansas", "name_abbreviation": "McElyea v. State", "decision_date": "2004-06-23", "docket_number": "CA CR 03-851", "first_page": "103", "last_page": "112", "citations": [ { "type": "official", "cite": "87 Ark. App. 103" }, { "type": "parallel", "cite": "189 S.W.3d 67" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "261 Ark. 243", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678892 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/261/0243-01" ] }, { "cite": "349 Ark. 715", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513725 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/349/0715-01" ] }, { "cite": "349 Ark. 648", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513776 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/349/0648-01" ] }, { "cite": "353 Ark. 618", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155525 ], "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "citing Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002)" }, { "parenthetical": "citing Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002)" } ], "opinion_index": 0, "case_paths": [ "/ark/353/0618-01" ] }, { "cite": "354 Ark. 187", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 36078 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/354/0187-01" ] }, { "cite": "82 Ark. App. 496", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142746 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/82/0496-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-12-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1997, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "80 Ark. App. 137", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138463 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/80/0137-01" ] }, { "cite": "86 Ark. App. 59", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 5404468, 6136575 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/357/0059-01", "/ark-app/86/0059-01" ] }, { "cite": "352 Ark. 92", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1159688 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/352/0092-01" ] }, { "cite": "81 Ark. App. 419", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142666 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/81/0419-01" ] }, { "cite": "303 Ark. 100", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882774 ], "weight": 2, "year": 1990, "pin_cites": [ { "parenthetical": "where the supreme court recognized the statutory principle in \u00a7 16-81-106(d)" }, { "parenthetical": "where the supreme court recognized the statutory principle in \u00a7 16-81-106(d)" } ], "opinion_index": 1, "case_paths": [ "/ark/303/0100-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-81-106", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2003, "pin_cites": [ { "page": "(d)" } ], "opinion_index": 1 }, { "cite": "253 Ark. 273", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627299 ], "weight": 2, "year": 1972, "opinion_index": 1, "case_paths": [ "/ark/253/0273-01" ] } ], "analysis": { "cardinality": 745, "char_count": 15804, "ocr_confidence": 0.74, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.39375075535291826 }, "sha256": "e879dfe877e76e7d1701c97d3bbdb9b99969981edcd7c50e889757731423ad42", "simhash": "1:eb509690c1a87162", "word_count": 2608 }, "last_updated": "2023-07-14T19:54:56.491359+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman, J., agrees.", "Baker, J., concurs." ], "parties": [ "David McELYEA v. STATE of Arkansas" ], "opinions": [ { "text": "Olly Neal, Judge.\nIn this appeal from the Washington County Circuit Court, appellant David McElyea challenges \u201cwhether the trial court erred in holding that the offense of robbery did not require a specific culpable mental state for the element of employing or threatening to employ physical force.\u201d As we understand appellant\u2019s argument, he submits a challenge to the sufficiency of the evidence convicting him. He also argues that the trial court abused its discretion in denying him the opportunity to make a proper argument to the jury, \u201cthereby denying Appellant a fair trial and due process as guaranteed under the Constitution of the United States and the State of Arkansas.\u201d Because there was no evidence in the record to support appellant\u2019s arguments, we affirm.\nDirected-verdict motions are treated as challenges to the sufficiency of the evidence. Saulsberry v. State, 81 Ark. App. 419, 102 S.W.3d 907 (2003). The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial; substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). Evidence is viewed in the light most favorable to the State; only evidence that supports a verdict is considered. Payne v. State, 86 Ark. App. 59, 159 S.W.3d 804 (2004); Clements v. State, 80 Ark. App. 137, 91 S.W.3d 532 (2002). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it. Saulsberry v. State, supra.\nDerek Brown, a Wal-Mart loss-prevention associate, testified that, as he entered Wal-Mart and passed through sporting goods, he observed appellant. Brown stated that appellant selected a Pur water purifier, walked towards the back of the store, and dropped the water purifier on the floor. When appellant bent over to pick up the purifier, Brown saw \u201ca bulge in the back of [appellant\u2019s] jacket[.]\u201d Brown followed appellant as he walked towards the front of the store. Appellant placed the water purifier into his shirt and proceeded to leave the store.\nBrown confronted appellant on the sidewalk and identified himself as a Wal-Mart loss- prevention employee. Brown testified, \u201cI showed him my badge, [and] I asked for our merchandise back.\u201d Brown noted that appellant was \u201cpretty nervous.\u201d Brown stated that appellant took one purifier out, dropped it on the ground, and told Brown \u201cthat\u2019s all I\u2019ve got, leave me alone or give me a break or something to that effect.\u201d Brown requested that appellant return to the store so that the necessary paperwork could be completed. Appellant attempted to abscond. Thereafter, Brown noted:\nI then turned, grabbed him by the jacket[;] it happened pretty quick, I think his right arm came out of the jacket first and then he spun around to where he was facing me and his left arm came out, he dropped the other water purifier and a bottle of lotion. At that time I stumbled and almost fell, caught myself, ran into the parking lot. I pursued him far enough to get a tag number and a make of car and called that into the police immediately.\nBrown testified that appellant struck him so hard across the nose that his eyes began to water. Brown acknowledged that he did not know when exactly appellant struck him because it happened so quickly. On cross-examination, Brown stated that he did not state in his report that he was struck, but that appellant struck him and that he told several members of management that he was struck. Brown testified that \u201cI can\u2019t say if it was intentional, only he can tell you that.\u201d Brown further testified that he informed Officer Phillips that he had been hit during the struggle.\nOfficer Kevin Phillips testified that he responded to the call at Wal-Mart and that he spoke with Brown about the shoplifting incident. Phillips noted that Brown told him appellant struck him and Phillips observed that Brown\u2019s eyes were watery and that Brown had a red mark across his nose.\nAt the conclusion of the State\u2019s case-in-chief, appellant\u2019s counsel moved for a directed verdict, arguing:\nYour Honor, at this time the Defendant would move for a directed verdict on the grounds that the State has presented insufficient evidence to establish that there\u2019s a robbery that\u2019s been committed. I think that they have to prove both elements of the offense, one, that there was a theft and two, that there was the element of use of force with the intent to commit the theft or apprehension in getting away and I don\u2019t think they\u2019ve risen to the level of showing that there\u2019s been sufficient physical force to meet that element and for those reasons I move for a directed verdict on those grounds.\nThe trial court denied the motion. Appellant renewed his motion at the close of the evidence, and the trial court denied his motion. Appellant was subsequently convicted and sentenced to eight years\u2019 imprisonment in the Arkansas Department of Correction. This appeal followed.\nNot at issue is the undisputed fact that appellant committed a theft while inside the Wal-Mart store. Nevertheless, Derek Brown testified that appellant struck him across the nose, an act that elevated appellant\u2019s charge to a robbery. Under Arkansas Code Annotated section 5-12-102 (Repl. 1997), \u201ca person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.\u201d \u201cPhysical force\u201d means any bodily impact, restraint, or confinement or the threat thereof.\u201d Ark. Code Ann. \u00a7 5-12-101 (Repl. 1997).\nAppellant advances the following argument:\nIt is disputed . . . whether Appellant ever intended to use force against the store employfee] to further his escape. There is no evidence that Appellant ever threatened the store employee, and the only evidence of bodily contact was the testimony of the store employee of Wal-Mart who never mentioned being struck in any of his store reports and even upon reviewing the store surveillance video could not identify exactly when and with which hand he was struck across the nose. Further, he could not tell if his being struck was an intentional act by appellant.\nAppellant\u2019s argument is misplaced. For purposes of the robbery statute, it is immaterial whether appellant ever intended to use physical force against Brown to further his escape. We hold that the word \u201cpurpose\u201d found within the robbery statute relates only to the acts of \u201ccommitting a felony or misdemeanor theft or resisting apprehension\u201d and does not, as appellant urges, provide that the employment of physical force or the threat thereof be purposeful.\nFor purposes of the statute, physical force means any bodily impact. See Ark. Code Ann. \u00a7 5-12-101 (Repl. 1997) (emphasis added). Here, the testimony from Brown is that appellant struck him in the nose. This testimony is corroborated by Officer Phillips\u2019s testimony that Brown told him appellant struck him. It is further corroborated by Phillips\u2019s testimony that Brown\u2019s eyes were watery and that Brown had a red mark across his nose. It is well-established that we do not weigh evidence presented at trial or weigh the credibility of witnesses, as these are matters to be resolved by the finder of fact. Garner v. State, 82 Ark. App. 496, 122 S.W.3d 24 (2003). Furthermore, a criminal defendant\u2019s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). Since intent cannot be proven by direct evidence, members of the jury are allowed to draw upon their common knowledge and experience to infer it from the circumstances. Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003) (citing Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002)). Accordingly, we affirm on this point.\nAppellant also appears to assert that the court abused its discretion by denying him the opportunity to make \u201cproper\u201d argument to the jury during closing. He asserts that the court concluded that no mens rea was necessary for the physical force employed in a robbery. As the State correctly asserts, this is an inaccurate categorization of the court\u2019s ruling.\nDuring closing arguments, defense counsel stated in part that \u201c[t]his is a shoplifting case and that\u2019s really all that it is. And it should be prosecuted as a shoplifting. What this isn\u2019t is strong arm robbery. You know robbery, you\u2019ve got to have the intent to be using physical force or \u2014 [.]\u201d The State objected, stating, \u201cYour Honor, that\u2019s not the law.\u201d The court sustained the objection. Defense counsel continued his closing argument, arguing:\nTo sustain this charge, the State must prove beyond a reasonable doubt that with the purpose of committing a theft or resisting apprehension immediately thereafter that David McElyea employed or threatened to immediately employ physical force upon another. He ran out of his coat. I don\u2019t think it\u2019s robbery. Physical force, any bodily impact, restraint],] or confinement. But remember what purpose is, its definition is provided also. A person acts with purpose with respect to his conduct when it is his conscious object to engage in that conduct. Derek Brown testified, he\u2019s already told us nobody can be certain that he ever intended to get hit, this wasn\u2019t his conscious object.\nAgain, the State objected and the trial court sustained the objection, stating, \u201cYes, I\u2019m going to sustain the objection. I\u2019ve ruled on this issue now for the third time and you know better than that.\u201d The court informed the jury that it would take a recess.\nDuring recess, the court explained its ruling to defense counsel by stating:\nNow Mr. Stutte [defense counsel],. I\u2019ll explain my ruling. There\u2019s absolutely no evidence in the record that this, the factual dispute is this: Whether or not physical force had been used. You maintain that it wasn\u2019t, the State maintains that it was. There\u2019s absolutely no evidence in the record of any unintentional conduct by this Defendant. Therefore, you\u2019re arguing facts that are outside the record and I\u2019m not going to permit it. That\u2019s my ruling. The instruction speaks for itself.\nDefense counsel also requested permission \u201cto argue the jury instruction and my interpretation of those jury instructions and that purpose as a mental state with regards to the second element of robbery is required.\u201d The court informed defense counsel that \u201cI understand your point, counsel. Again, my response to this argument, is to make that argument you\u2019re arguing facts that are outside the record and I\u2019m not going to permit you to do it. It\u2019s just that simple. Now let\u2019s proceed. Bring in the jury.\u201d\nHere, the court explained that it sustained the State\u2019s objection because there was no evidence in the record to support the defense\u2019s assertion that appellant did not intend his conduct. We do not take notice of gratuitous assertions based on matters not in the record. Turner v. State, 349 Ark. 715, 80 S.W.3d 382 (2002). Nor are arguments proper which are outside the record or have no evidentiary support. Wilkens v. State, 261 Ark. 243, 547 S.W.2d 116 (1977). Because there was no evidence in the record to support defense counsel\u2019s assertion that appellant did not intend to strike appellant in the nose and because determinations of fact are for the jury, we find no error and affirm.\nAffirmed.\nPittman, J., agrees.\nBaker, J., concurs.\nWe were unsuccessful in our attempt to certify this case to the supreme court.", "type": "majority", "author": "Olly Neal, Judge." }, { "text": "Karen R. Baker, Judge,\nconcurring. I must regretfully concur with the majority opinion because appellant does not raise or argue the fact that the Wal-Mart theft-prevention employee had no authority to arrest or detain appellant; therefore, since the employee had no authority to apprehend Mr. McElyea, appellant could not have been guilty of resisting apprehension.\nIn Akins v. State, 253 Ark. 273, 485 S.W.2d 535 (1972), the Arkansas Supreme Court reversed and dismissed a conviction for escape holding that where an appellant ran away from police officers, but he was not in lawful custody, he could not be guilty of escape. In that, case, a detective with the Little Rock Police Department stopped the appellant on the street, showed him his badge, and told the appellant that he was under arrest for investigation of vending-machine burglaries. The court explained that no public offense was committed in the presence of the officers, defendant was not arrested in obedience to an arrest warrant, and the officers had no reasonable grounds for believing defendant had committed a felony; therefore, defendant was not in lawful custody at the time he ran away and thus, was not guilty of escape.\nIn the case before us, the employee is a private citizen. A private citizen has authority to arrest another pursuant to Ark. R. Crim. P. 4.1(b) (2004) and Ark. Code Ann. \u00a7 16-81-106(d) (Repl. 2003). Section 16-81-106(d) provides that a private person may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony. Under this statute and the described circumstances, an officer acting outside his jurisdiction has the authority to effect an arrest. See Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990) (where the supreme court recognized the statutory principle in \u00a7 16-81-106(d)), but concluded Perry had been arrested on a misdemeanor, making the arrest invalid).\nArkansas Rule of Criminal Procedure 4.1(b) provides in pertinent part that:\n\u201ca private person may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony.\u201d\nArkansas Code Annotated \u00a7 16-81-106 provides in relevant part:\n(a) An arrest may be made by a certified law enforcement officer or by a private person.\n(b) A certified law enforcement officer may make an arrest:\n(1) In obedience to a warrant of arrest delivered to him; and\n(2) (A) Without a warrant, where a public offense is committed in his presence, or where he has reasonable grounds for believing that the person arrested has committed a felony.\n(B) In addition to any other warrantless arrest authority granted by law or court rule, a certified law enforcement officer may arrest a person for a misdemeanor without a warrant if the officer has probable cause to believe that the person has committed battery upon another person and the officer finds evidence of bodily harm, and the officer reasonably believes that there is danger of violence unless the person alleged to have committed the battery is arrested without delay.\n(c)(1) A certified law enforcement officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer\u2019s presence or view, if the offense is a felony or a misdemeanor.\n(d)A private person may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony.\nTherefore, a private citizen may apprehend a person only where he has reasonable grounds for believing the person committed a felony. A police officer cannot arrest an individual for misdemeanor theft unless the offense was committed in full view of the officer who witnessed the public offense. Because the Wal-Mart theft-prevention employee was a private citizen, he had no authority to arrest appellant; accordingly, appellant could not have been resisting apprehension.", "type": "concurrence", "author": "Karen R. Baker, Judge," } ], "attorneys": [ "Charles L. Stutte, for appellant.", "Mike Beebe, Att\u2019y Gen., by: DavidJ. Davies, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "David McELYEA v. STATE of Arkansas\nCA CR 03-851\n189 S.W.3d 67\nCourt of Appeals of Arkansas Division IV\nOpinion delivered June 23, 2004\n[Rehearing denied July 28,2004.]\nCharles L. Stutte, for appellant.\nMike Beebe, Att\u2019y Gen., by: DavidJ. Davies, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0103-01", "first_page_order": 125, "last_page_order": 134 }